Some states with marriage bans not defending DOMA

Indiana is taking the lead among 17 states signing a brief in support of the 1996 Defense of Marriage Act, to be argued before the Supreme Court March 27. But 38 states ban same-sex marriage. That means a majority of states with bans are not even trying to defend DOMA, which defines marriage for federal purposes as the union of one man and one woman.

Among the states with bans, 17 signed the brief supporting DOMA and 21 did not.

Two of those states, California and Minnesota, are obvious omissions. California officials are also refusing to defend Prop. 8, the voter passed initiative that bans same-sex marriage in the state and was ruled unconstitutional in a district court and the Ninth Circuit. The high court will hear the Prop. 8 case March 26, when Ted Olson and David Boies, antagonists in Bush v. Gore, unite to try to shoot down all state marriage bans as an unconstitutional. Find their brief here.

Minnesota voters last November defeated a state constitutional amendment to define marriage as a union of one man and one woman, the first state ever to do so.

The Indiana amicus is signed by the attorneys general of Alabama, Alaska, Arizona, Georgia, Idaho, Indiana, Kansas Michigan, Montana, North Dakota, Oklahoma, South Carolina, Texas, Utah, Virginia, West Virgina and Wisconsin.

Dale Carpenter, a professor of civil rights law at the University of Minnesota and author of Flagrant Conduct, a reportorial masterwork on the Lawrence v. Texas decision, said Wednesday on a call arranged by the conservative Federalist Society that he assumes that in the non-participating states, “there are executive law enforcement officers who do not support their state ban…There are public officials across the country who have evolved on this over time. Either that, or they don’t care enough about the issue to take the trouble to make this part of their legacy.”

To be sure, only DOMA’s section 3 is at issue, which defines marriage for federal purposes as the union of one man and one woman. Section 2, which says that no state is required to accept gay or lesbian marriages from other states, is not before the court.

A new Reuters/Ipsos poll shows a 55 percent majority nationwide supporting same-sex marriage, following a Washington Post poll earlier this week showing support jumping to 58 percent, an all-time high. The Post reported that the results have flipped since 2006: “As recently as 2010, opponents of same-sex marriage outnumbered supporters. As recently as 2006, they outnumbered them by a double-digit margin, 58 percent to 36 percent.”